The attorney general’s office has spent at least $1.5 million defending against a pair of school funding lawsuits that reached the state Supreme Court last year, according to a review of public records.
That figure does not include the cost of the roughly 4,250 hours worked by in-house counsel and staff or the state’s $2 million payout in attorneys’ fees to school districts and their lawyers in one of the cases.
In total, the state has spent about $4 million on the litigation thus far, according to records obtained by the Concord Monitor in response to a right-to-know request.
The cases, Contoocook Valley School District, et al. v. State of New Hampshire, et al. and Steven Rand, et al. v. State of New Hampshire, were filed in 2019 and 2022, respectively, and both involved multi-week trials and oral arguments before the Supreme Court.
The appeals to the Supreme Court yielded mixed results for the state, which lost in the earlier-filed case but prevailed on a portion of the Rand suit.
In July, the Court ruled in ConVal that the state’s current level of public education funding is unconstitutionally low. In Rand, the Court ruled that the state’s implementation of the statewide education property tax did not violate the state Constitution.
However, that case was split into two, and a lower court judge ruled in August in line with the Supreme Court in ConVal, finding that the total amount of adequacy funding provided by the state to local school districts is insufficient. That ruling could be appealed back to the Supreme Court, extending the litigation into 2026.
The Monitor requested records of all payments to outside counsel, experts or consultants, as well as other litigation-related costs, such as for depositions, court fees and travel expenses during the entirety of the litigation in the two cases. The request also asked for an accounting of all hours worked by the Department of Justice staff and for their hourly rates.
To expedite its response to the request, the office offered to provide a list of total spending on outside counsel and internal expenses, as well as the total hours worked by department staff, which the Monitor accepted in lieu of the records themselves.
In ConVal, which spanned six years, the state spent $1,041,949.27 on departmental expenses and $114,940.66 on outside attorneys.
Department of Justice spokesperson Michael Garrity did not respond to a request for information on what those categories of expenses encompassed.
During a month-long trial in 2023, at least two expert witnesses testified for the state. Experts are often among the most expensive outside costs in litigation.
The state also retained two lawyers from an out-of-state law firm, according to court records. J. Nicci Warr and John Munich were partners in the Missouri office of Stinson, LLP during much of the case, according to their firm and personal profiles, though Munich is no longer listed on the firm’s website.
In Rand, which had a shorter trial and was filed three years after ConVal, the state spent $47,700.36 on departmental expenses and $358,373.76 on outside counsel, as of October 31. (Additional expenses will accrue if the state appeals to the Supreme Court.)
Warr and Munich also represented the state in that case, according to court records.
The Monitor’s analysis found that staff time was equivalent to roughly $250,000.
An exact calculation of the spending on in-house staff time required both the number of hours each employee worked and their hourly rate, which was not provided. The Monitor instead used a base estimate of $57.50 per hour to generate a value for the 4,250 hours worked by Department of Justice employees, which includes lawyers and support staff who worked on the cases. Based on that math, staff time was assigned a value of $244,375.
The costs for the school funding lawsuits come as Attorney General John Formella has reported the litigation workload at the department is at “historically high levels.” In October, the Executive Council approved a request for an additional $4.3 million for litigation costs this year, more than ten times the initial appropriation of $372,500.
In a letter to state leaders, Formella blamed the rise in costs primarily on the prosecution and litigation defense related to the Youth Development Center sexual abuse scandal.
The bulk of the $4.3 million was for litigation defense.
The total projection for litigation costs for this fiscal year — $4.7 million — was far lower than last year, when the state spent $7.7 million, according to Formella.